Don't be afraid of data mining

A free nation comes under a grave risk of attack. The people are sorely afraid. They naturally look to their government to protect them; it is perhaps the central reason government exists.

The government takes steps, many of them secret, some of them uncomfortable to the national ideals. The ruthlessness of the enemy requires ruthlessness in return, meaning that the free nation takes on characteristics of its enemy.

This is basic John LeCarre. It is also U.S. history since World War II.

Here is the rest of it: Years pass. The memory of the threat fades faster than the threat itself. Something brings to light the details of what the government has done in our defense. We are scared again, but this time we are scared of our government.

It happened during the Cold War, which began with thermonuclear devices exploding in the atmosphere, Soviet spies stealing the designs of our weapons. Slowly the idea that our best protection was pointing nuclear weapons at the nuclear weapons pointing at us became the new normal. We forgot how scared we once had been.

Then came Watergate. National security became just another name for cover-up. We became frightened of our own government: electronic surveillance, surreptitious opening of private mail to and from the Soviet Union, Americans spying on Americans. And yet the Soviets still aimed enough nuclear weapons at us to kill us 10 times over. Russian spies were still on the loose.

This time around the threat came from elusive terrorist organizations. One of their plans succeeded, the horrendous attack on the World Trade Center and the Pentagon. It was only a dozen years ago that people fled tall buildings in cities across the country. But even though we have been reminded of it by the small pressure-cooker bombs at the Boston Marathon, we seem to have forgotten the scale of what terror organizations can wreak. It is not that they have lost the will. It is not that they would hesitate to explode a crude nuclear weapon in one of our cities. It is only that the defense mounted by the government against them has to a significant degree worked.

Then came the news stories about government programs to gather an enormous amount of data showing who calls who and for how long, and the other to look into the details of the Internet communications of people reasonably believed to be plotting attacks on us.

We are afraid of our government again.

It is always right to be wary, of course. But there is much less reason to fear this time. After Watergate the government took steps to keep secret government activity in check. It used the basic genius of the U.S. Constitution as its guide, dividing the power among the three branches of government so that one would check the other. The genius was to use human nature to correct its own excesses. "Ambition must be made to counteract ambition," wrote James Madison in the Federalist Papers.

President Gerald Ford chose Attorney General Edward Levi to restore public confidence that the U.S. government operated by the rule of law. When Levi arrived in the Department of Justice, the government was engaging in electronic surveillance in the foreign intelligence war on the basis of the president's authority alone; there was no law requiring a judicial warrant in such cases or for that matter empowering judges to issue one. Many intelligence programs, including the National Security Agency's, had never been put to the constitutional test; the FBI was investigating thousands of domestic political dissident groups.

Levi instituted new guidelines for the FBI that had the effect of stopping most of these investigations. The ones that survived were based on evidence that the group was involved in breaking law through force or violence.

This kind of curtailment of counterespionage and foreign intelligence activities was not an option. The Soviet threat, among others, was simply too great. What Levi did, with Ford's resolute support, was first to disclose a vast amount of previously highly classified information to Congress. Some of it he spoke about publicly. Some he disclosed privately to congressional committees. Some was so sensitive that he only disclosed it to congressional leaders.

Second, he proposed a statute creating what is now called the Foreign Intelligence Surveillance Court, which has the power to review government applications to do wiretaps and other intrusive surveillance and grant warrants when the evidence justified this.

Unfortunately, after 9/11 the Bush administration decided to rely much more on presidential power and much less on informing and gaining consensus in Congress and warrants from the surveillance court. When news of this leaked out, it began the pendulum swinging back from fear of the terrorists to fear of our own government.

Now it is the Obama administration that is on the defensive. It does not deserve to be. It has gone out of its way to include Congress and the special court in the process. It has allowed ambition to counteract ambition, and there is plenty of ambition around for the purpose. The administration should have been a lot more open with the public, and it will have to be now.

But the terrorist threats from outside are real. And the constitutional idea of separation of powers is still the best defense against the threats from government.

Jack Fuller, a former editor and publisher of the Chicago Tribune, won the Pulitzer Prize in 1986 for editorials in the Tribune about constitutional issues. He is the editor of "Restoring Justice: The Speeches of Attorney General Edward Levi." He was a special assistant to Levi in the Justice Department.